From the statement of law quoted above, it will appear clear that there is no general rule that post-notification transactions are necessarily to be ignored altogether. On the other hand, all transactions would be relevant which could afford fair criteria for the value of the property as at the date of the notification under section 4. The distance of time by which a particular transaction is divorced from the date of relevant notification will have a bearing on the probative value and impact of that transaction while determining the fair market value of the property acquired. As has been stated in the aforesaid head-note, it must generally depend upon the purpose of acquisition and the question whether any particular transaction, even if it be a post-notification transaction, is relevant and can afford a guide for determining the fair market value of the property acquired as at the date of the Notification will depend upon the facts and circumstances of each case. Just as transactions long prior to the notification may be of no value, similarly the transactions long after the notification would be of no value. But it cannot be laid down as any positive rule that such transactions have necessarily to be ruled out altogether. In fact, sections 23 and 24 do not prohibit post-notification sales from being taken into consideration while determining the market value of the acquired land. In view of this position in law which has been clarified in Assistant Development Officer, Trombay v. Tayaballi, it will not be possible to accept Mr. Pratap's contention that the sale instances on which reliance has been placed by the claimants should be discarded outright or ought to have been regarded as irrelevant simply because they happened to be post-notification sales divorced by two to three years from the date of the relevant Notification. We may point out that the view expressed in Assistant Development Officer, Trombay v. Tayaballi has been approved by the Andhra Pradesh High Court in the case of Land Acquisition Officer v. Penchalayya 1962 A P 725 ., where the head-note runs as follows:
"The terms of section 23 of the Land Acquisition Act do not prohibit post-notification sales from being taken into consideration. What has to be determined under section 23 (1) is the market value as on the date of the notification. Even section 24 of the Act does not in terms state that post-notification transactions ought to be eschewed or ignored altogether. The post notification transactions are relevant and admissible though the weight to be attached to those transactions might vary according to the facts of each particular case."
Citation;1975MhLJ468
IN THE HIGH COURT OF BOMBAY
Decided On: 12.10.1973
Appellants: Chindha Vithal Sonawane
Vs.
Respondent: Special Land Acquisition Officer
Vs.
Respondent: Special Land Acquisition Officer
Hon'ble Judges/Coram:
V.D. Tulzapurkar and P.S. Shah , JJ.
1. These three appeals arise out of the land acquisition proceedings that were initiated under two different Notifications issued almost simultaneously, one being for the project of Market Yard of the Agricultural Produce Market Committee, Malegaon and the other for a Technical High School at Malegaon.
2. Part of Survey No. 6 admeasuring 3 acres 18 gunthas and odd annas of Malegaon Camp belonging to claimant No. 1 (Chindha Vithal Sonawane), Survey No. 322 admeasuring 6 acres 19 gunthas belonging to claimant No. 2 (Pandit Dongar Mali), Survey No. 323/1 admeasuring 1 acre 2 gunthas and odd annas belonging to claimant No. 3 (Madhusudan Pandit Mali), Survey No. 323/2 admeasuring 19 gunthas belonging to claimant No. 4 (Dongar Sadashiv Mali), Survey No. 324/1 admeasuring 5 acres 16 gunthas belonging to claimant No. 5 (Nadarbai widow of Pandit Mali), Survey No. 324/2 admeasuring 4 acres 27 gunthas and Survey No. 325 admeasuring 2 acres 35 gunthas and odd annas belonging to claimant No. 6 (Parvatibai widow of Dongar Mali) -the last 6 parcels being situate at Sangameshwar-were notified for acquisition for the project of Market Yard for the Agricultural Produce Market Committee, Malegaon. Section 4 Notification was published on September 12, 1957. Claimants Nos. 2 to 6 formed a group of themselves being the members of the same Family though several parcels of land stood in their names separately. Pursuant to notice served on the claimants under section 9 of the Act the claimants lodged their claims for the value of the lands acquired, for trees standing thereon and for the crops which were also standing thereon at the material time. Claimant No. 1 who was the owner of Survey No. 6 of Malegaon Camp claimed land value at the rate of Rs. 21,000 per acre while claimants Nos. 2 to 6 who were the owners of the other lands claimed land value at the rate of Rs. 30,000 per acre. By his award dated November 21, 1962 the Special Land Acquisition Officer awarded the land value to the claimants at rates ranging from Rs. 1,800 to Rs. 2,500 per acre in respect of these lands. Claimant No. 1 was not given any compensation for trees standing thereon while the other claimants were granted the price of trees at the rate of Rs. 5 per tree for such trees as were standing in each one's respective lands. For the standing crops claimant No. 1 was awarded compensation of Rs. 340, claimant No. 2 was awarded compensation of Rs. 730, claimant No. 3 was awarded compensation of Rs. 80, claimant No. 4 was awarded compensation of Rs. 400, claimant No. 5 was awarded compensation of Rs. 350 and claimant No. 6 was awarded compensation of Rs. 225. Feeling aggrieved by the Award the claimants asked for a reference being made to the civil Court and the reference came to be numbered as Land Acquisition Reference No. 16 of 1963 in the Court of the Civil Judge, Senior Division Nasik. In the civil Court the claimants contended that the land value awarded by the Special Land Acquisition Officer at rates ranging from Rs. 1,800 to Rs. 2,500 per acre in respect of their lands was grossly inadequate, that having regard to the situation where their lands were situate and the building potentiality which each of their lands possessed it was an error to value the lands on the basis that they were agricultural lands and to make a small allowance for building potentiality and that the lands should have been valued on the basis that they were non-agricultural building sites and claimant No. 1 claimed the land value at Rs. 25,000 per acre while claimants Nos. 2 to 6 claimed the land value at Rs. 30,000 per acre. They also disputed compensation awarded in respect of the trees standing in the acquired lands and claimed compensation at the rate of Rs. 50 per tree on the basis that the trees ought to have been valued having regard to the timber value. They also disputed the compensation that was awarded by the Special Land Acquisition Officer for the standing crops and claimed higher amounts. In support of their claim the sale instances of the adjoining building sites were proved and relied upon by them. In all five sale instances were sought to be relied upon by the claimants. On behalf of the State the claim for higher compensation was resisted and it was urged that though the acquired lands could be said to have some building potentiality, it was a remote potential and not an immediate one and that therefore it would be proper to value the land on the basis that they were agricultural lands and give some added compensation for their building potentiality. Two sale instances pertaining to agricultural parcels of lands were proved and relied upon by the State. The learned Judge on an appreciation of evidence took the view that the sale instances that were relied upon by the claimants could not afford a comparable guide for fixing the valuation of the acquired lands and he, therefore, discarded those sale instances and he accepted the contention raised on behalf of the State that the acquired lands should be valued on the basis that they were agricultural lands and some allowance could be made for the building potentiality which was possessed by those lands. Relying upon the two sale instances which were produced on behalf of the State he felt that they afforded a reasonable guide for fixing the proper market value of the acquired lands. He, however, took the view that though the acquired lands had building potential, that factor had two aspects, namely that out of the acquired lands those parcels of lands from Survey No. 6 of Malegaon Camp and Survey No. 322 of Sangameshwar, which were abutting the main road leading from Sangameshwar to Malegaon Camp had greater building potentiality rather than other parcels of lands which were in the interior. He, therefore, concluded that part of area-out of Survey No. 6 and the land covered by Survey No. 322-could be valued after taking into account its building potentiality at the rate of Rs. 4,000 per acre while the remaining land could be valued at the rate of Rs. 3,000 per acre and he awarded compensation at the said rates. As regards the trees, he took the view that the Special Land Acquisition Officer had omitted to consider the evidence pertaining to the trees which were standing on the land belonging to claimant No. I and he accepted claimant No. 1's evidence that there were ten Babul trees in the acquired land for which compensation at the rate of Rs. 5 per tree was regarded by him as reasonable. For the trees which were standing on the other parcels of land also he granted compensation at the rate of Rs. 5 per tree. As regards compensation for the standing crops he took the view that there was no material brought on record by the claimants which could call for interference in the compensation awarded by the Special Land Acquisition Officer so far as standing crops in the acquired lands were concerned. He accordingly passed a decree on December 31, 1963. It is this decree which is the subject-matter of a challenge in First Appeal No. 332 of 1964 which has been preferred by claimants Nos. 1 to 6, who are the owners of Survey No. 6 of Malegaon Camp and Survey Nos. 322, 323/1, 323/2, 324/1, 324/2 and 325 of Sangameshwar.
3. Survey No. 5/1 admeasuring 1 acre 29 gunthas and Survey No. 5/5 admeasuring 2 acres 24 gunthas belonging to claimant No. 3 (Jagannath Vedu Mahajan), Survey No. 5/2 admeasuring 4 acres 27 gunthas belonging to claimant No. 1 (Dodhu Manaku Mahajan) and Survey No. 5/3 admeasuring 2 acres 14 gunthas and Survey No. 5/4 admeasuring 3 acres 23 gunthas belonging to claimant No. 2 (Kalu Hiraman Mahajan)-an area aggregating to 13 acres 37 gunthas situate at Malegaon Camp-were acquired for the purpose of a Technical High School at Malegaon under section 4 Notification which was published on September 5, 1957. The possession of the acquired land was taken under the urgency clause on December 21, 1957. Pursuant to notices that were served upon them under section 9 of the Act, the claimants lodged their claims before the Special Land Acquisition Officer and they claimed compensation at the rate of Rs. 32,000 per acre for their lands. By his Award dated June 22, 1962 the Special Land Acquisition Officer awarded compensation aggregating to Rs. 40,818.18 inclusive of solatium at varying rates, the land value being fixed at varying rates of Rs. 1,500 to Rs. 2,500 per acre. Claimant No. 1 who owned Survey No. 5/2 was awarded compensation at the rate of Rs. 2,000 per acre while claimant No. 2 who owned Survey Nos. 5/3, 5/4 at the rate of Rs. 1,500 and Rs. 2,500 respectively and claimant No. 3 who owned Survey Nos. 5/1 and 5 /5 at the rate of Rs. 2,500 for both. Being dissatisfied with the Award the claimants asked for a reference which was numbered as Land Acquisition Reference No. 45 of 1962 in the Court of the civil Judge, Senior Division, Nasik. In the trial Court the claimants claimed compensation for their lands at Rs. 20,000 per acre and further claimed 15 per cent, solatium on such enhanced rate of compensation. In support of their claim for enhanced compensation reliance was placed upon as many as 5 sale instances which pertained to non-agricultural parcels of lands having building potentiality. The claim was resisted by the State on the ground that though the lands acquired had some building potentiality, the lands had however been put to agricultural use and compensation should be awarded on the basis that the lands could be treated as agricultural lands and some allowance for the building potentiality could be made. Two sale instances pertaining to agricultural lands were proved on behalf of the State as comparable instances. The learned Judge discarded the sale instances that were proved on behalf of the State and proceeded to value the lands on the basis that they were non-agricultural sites having great building potentiality Relying upon two sale deeds that were produced at exhs. 24 and 28 he regarded two sale instances (exhs. 24 and 28) as instances of comparable transactions and as affording a guide for fixing the market value of the lands. The price rate under exh. 24 worked out at Rs. 13,722 per acre while the price rate under exh. 28 worked out at Rs. 15,000 per acre. He further took the view that Survey No. 5/1 admeasuring 1 acre 29 gunthas which was abutting Malegaon Camp road could be valued at the rate of Rs. 15,000 per acre while Survey No. 5/2 and Survey No. 5/4, which comprised the middle portion of the entire land of Survey No. 5 should be compensated at the rate of Rs. 7,500 per acre, while the remaining pieces of lands viz. Survey No. 5/3 and Survey No. 5/5, which were very much deep on the back side of the entire land should be properly compensated at the rate of Rs. 5,000 per acre. Accordingly, he granted total compensation of Rs. 1,05,000 for the said lands at the aforesaid rates and added Rs. 15,750 by way of solatium at 15 per cent. He granted total compensation of Rs. 1,20.750. Deducting the amount that had been awarded by the Special Land Acquisition Officer viz. Rs. 40,818.18, he passed a decree in the claimants favour to the extent of Rs. 79,931.82. He also awarded interest at 4 per cent, per annum from December 21, 1957 being the date when possession had been taken by the Government till payment. This decree passed by the learned Judge on March 23, 1964 has been challenged both by the State of Maharashtra in First Appeal No. 485 of 1964 and by the claimants in First Appeal No. 549 of 1964. The State has contended that the enhanced compensation granted by the learned Judge was without any basis and that in fact the acquired lands should have been valued on the basis that they were agricultural lands to which some allowance could have been made having regard to their building potentiality. On behalf of the claimants the decree of the learned Judge is challenged on the ground that even higher compensation-the compensation claimed by the claimants at the rate of Rs. 20,000 per acre-ought to have been awarded.
4. Since the two acquisitions, which have given rise to these two Land References, were initiated almost simultaneously, the first one being by issuance of Notification under section 4 on September 12, 1957 and the second one being by issuance of Notification under section 4 on September 5, 1957 and since the sale instances, which have been produced by the claimants in both the References as well as two instances which have been produced on behalf of the State in both the References are common instances, it would be advisable to deal with these three appeals together and dispose them of by a common judgment.
5. So far as First Appeal No. 332 of 1964 is concerned, Mr. Limaye appearing, for the claimants has contended that the learned Judge was in error in rejecting the sale instances that were proved and relied upon by the claimants at the trial and the learned Judge further erred in granting compensation for the value of the lands on the basis that the acquired lands were agricultural lands. He contended that having regard to the admitted position that the acquired lands were situate on the principal road, namely the road which ran from Sangameshwar to Malegaon Camp and having regard to the fact that the acquired lands had considerable building potentiality and the fact that Malegaon Town was a fast developing town, the learned Judge should have proceeded to value the acquired lands on the basis that they were non-agricultural lands-on the basis that they were building sites. He further contended that though the sale instances which had been produced on behalf of the claimants were post-notification instances, it was an error to have discarded all those instances altogether and the learned Judge should have treated those sale instances as relevant instances, of course by making some allowance for the fact that they were post-notification sales. He particularly placed reliance upon the sale deed dated June 23, 1959 under which an area admeasuring I acre out of S. No. 318/3 of Sangameshwar assessed at2-8-0 had been sold at Rs. 15,000- the sale instance on which reliance had been placed by the learned Judge dealing with Land Acquisition Reference No. 45 of 1962. He, therefore, urged that the compensation granted by the learned Judge for the parcel of land out of Survey No. 6 of Malegaon Camp and for the land covered under S. No. 322 of Sangameshwar at the rate of Rs. 4,000 per acre and for the remaining lands at the rate of Rs. 3,000 per acre was utterly inadequate and this Court should fix the proper market value of the lands acquired after having regard to the situation of the acquired lands and their building potential. Mr. Pratap appearing for the State has, however, attempted to justify the compensation that has been granted by the learned Judge.
6. So far as First Appeal No. 485 of 1964, which has been preferred by the State, is concerned, Mr. Pratap contended that the learned Judge ought to have accepted the two sale instances that were proved on behalf of the State at the trial as affording proper guide and ought to have fixed the compensation for the lands acquired on the basis that they were agricultural pieces of land by adding some amount for the building potentiality which those lands possessed. He strenuously contended that the learned Judge was clearly in error in relying upon the sale instances which had been proved on behalf of the claimants at the trial-all sale instances were admittedly post-notification sales. He pointed out that these sale instances on which the claimants relied apart from the fact that they pertained to sales of developing plots of land, pertained to the period which was 2 to 3 years later than the relevant date of section 4 Notification and as such these sale instances should have been regarded by the learned Judge as irrelevant. In support he relied upon the decision of the Madras High Court reported in Velayudam v. Special Tahsildar A I R 1959 Mad. 462 . He further contended that no evidence worth the name had been led by the claimants showing that any development had taken place in the vicinity of the acquired lands prior to issue of section 4 Notification. He further pointed out that in fact the tenor of the evidence led by the claimants clearly showed that all the development that had taken place was on the southern side of Sangameshwar-Malegaon Camp road and that too on account of two acquisition that were initiated by the State Government, one for the purpose of having a Technical High School and the other for the project of Market Yard of Agricultural Produce Market Committee, Malegaon and he urged that the claimants were not entitled to receive any advantage by way of rise in price that must have occurred as a result of initiation of these two acquisitions and in support of his contention he relied upon the Privy Council decisions in Atmaram v. Collector of Nagpur MANU/PR/0106/1929 : AIR 1929 P C 92 : (1929) 31 Bom. L R 728, PC. In any event he contended that the learned Judge was clearly in error in striking an average rate per acre per land sold for non-agricultural use under sale deeds exhs. 24, 28, 36 and 40 between Rs. 13,440 and Rs. 15,000 per acre, for these sale transactions from which an average price rate per acre had been struck by the learned Judge were the sale transactions pertaining to the years 1959 60 whereas the relevant date for fixing the market value of the acquired lands was September 5, 1957. He has further contended that in applying the rate of Rs. 15,000 per acre to the land covered by Survey No. 5/6 the learned Judge has not indicated the basis or the material on which the said rate could be granted in respect of that land and in the absence of any reasoning in that behalf the compensation granted at that rate should not be sustained by this Court. On the other hand, the claimants in their Appeal No. 549 of 1964 have contended that even the compensation that has been granted by the learned Judge for the acquired lands has been rather low and that the compensation at the rate of Rs. 20,000 per acre as was claimed by them as the price should have been granted. We shall consider these rival submissions made by counsel on behalf of the respective parties in these appeals presently.
7. We shall first deal with a couple of legal contentions which have been urged by Mr. Pratap on behalf of the State before us. The first contention urged by Mr. Pratap was that the claimants in either of these references were not entitled to receive benefit of any increase in the value of the land that must have taken place on account of two acquisitions that-were initiated by the State Government in the month of September 1957, one for Technical High School at Malegaon and the other for the project of Market Yard of Agricultural Produce Market Committee, Malegaon. He urged that on the material that was available on record it could be clearly said that the claimants had failed to prove that there had been any building activity or development activity undertaken in the vicinity of the lands acquired prior to September 1957 and all such development activity or building activity which had possibly given a fillip to the land value in the vicinity had been undertaken after the two acquisitions had been initiated and if as the result of initiation of these two acquisitions certain development had taken place giving a fillip to the prices of the lands in the vicinity of the acquired lands, the claimants could not get the benefit thereof. In this behalf he relied upon the clause 'fifthly' of section 24 of the Land Acquisition Act and the decision of the Privy Council reported in Atmaram v. Collector of Nagpur. He specifically invited our attention to the principle that has been enunciated by the Privy Council in the said case on p. 731 of the report. The principle has been enunciated thus:
"Now, the proper principles applicable to the case were not in controversy before the Board. An owner of lands in the position of the appellant is entitled, it was agreed, to the value to himself of the property in its actual condition at the time of expropriation with all its then existing advantages and with all its future possibilities, excluding only any advantage due to the carrying out of scheme for the purposes for which the property was being acquired."
In view of the above principle enunciated by the Privy Council, Mr. Pratap contended before us that the learned Judge was in error in granting compensation at the higher rate to the claimants in respect of their lands which had been acquired because of higher rates that were prevailing in the post-notification period, the instances of sales pertaining to which period had been proved on behalf of the claimants. The principle enunciated by the Privy Council in the aforesaid decision to which our attention has been drawn is undoubtedly based upon the provisions of clause fifthly of section 24 of the Land Acquisition Act and the question before us is as to how far and to what extent the aforesaid principle could be applied to the facts of the present case. Sections 23 and 24 of the Act respectively set out the matters which shall be taken into consideration by the Court and the matters which shall not be taken into consideration by the Court while fixing the compensation payable to the claimants. We are concerned with section 24 which enumerates the matters which the Court is enjoined upon to ignore while determining the compensation and clause fifthly of section 24, which is material, runs as follows:
"24. But the Court shall not take into consideration... fifthly, any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired;"
Clause fifthly of section 24, in our view, clearly provides that a claimant will not be entitled to get benefit by way of increase in the value of the land acquired arising out of the use to which the said land would be put after being acquired; in other words, no claimant would be entitled to say that his land, after the acquisition was accomplished, was going to be put to a particular use, say, non-agricultural use such as undertaking of building activity therein and that therefore his land has acquired higher value represented by building potentiality that will get attached to it and therefore higher compensation at that higher rate should be paid to him. Clause fifthly of section 24 has been interpreted by the Privy Council in the aforesaid decision to this effect. The claimant is entitled to the value to himself of the property in its actual condition at the time of expropriation with all its then existing advantages and with all its future possibilities and the only thing that has to be excluded is any advantage due to the carrying out of the scheme for the purposes for which the property is being acquired. In our view, the position under clause fifthly of section 24 as interpreted by the Privy Council in the aforesaid decision is clear, namely that the Claimant is entitled to the value of all existing advantages as well as future possibilities pertaining to the land acquired but he will not be entitled to any advantage, particularly by way of increase in the value, arising by reason of the very acquisition that gives rise to a claim for compensation but the instant case is not a case of a single acquisition but is a case where two independent acquisitions pertaining to independent lands for independent purposes were initiated by the State Government and what is more, both these acquisitions were initiated almost simultaneously in the month of September 1957. The first acquisition in point of time was in respect of S. No. 5 under section 4 Notification published on September 5, 1957 for the purpose of a Technical High School at Malegaon and the second one was in respect of S. No. 6 of Malegaon Camp and S. Nos. 322, 323, 324 and 325 of Sangameshwar for the purpose of the project of Market Yard of Agricultural Produce Market Committee, Malegaon under section 4Notification which was published on September 12, 1957. What is more, two survey numbers viz. S. Nos. 5 and 6 are adjacent, both abutting on the main road called Sangameshwar Road leading to Malegaon Camp and S. No. 5 lies to the north of S. No. 6. There is yet one more aspect which we must mention. The acquisition of S. No. 5 for the Technical High School was initiated at the instance and on the basis of letter dated August 31, 1955 which was received by the Government from the Superintendent, Technical High School, Malegaon. Similarly, the acquisition in respect of S. No. 6 and S. Nos. 322, 323, 324 and 325 for the purpose of Market Yard of Agricultural Produce Market Committee, Malegaon was initiated at the instance and on the basis of letter dated August 6, 1956 received by the Government from the Chairman, Agricultural Produce Market Committee, Malegaon. In other words, though the Notifications under section 4 were published on September 5, 1957 and on September 12, 1957, the proposed acquisitions were under consideration from August 1955 and August 1956 respectively, that is, the proposed acquisition was impending for fairly long time prior to the issuance of the relevant Notifications and these facts must have come to the notice of all persons living in three localities-Malegaon Town, Malegaon Camp and Sangameshwar village-which were three adjacent localities comprised within the Malegaon municipal limits and it cannot be disputed that because the proposed acquisitions in respect of large areas were under consideration for fairly long time that itself must have given a fillip to the existing price- level of the lands in the vicinity and also fillip to the development activities-an aspect which has been admitted by the witnesses in their evidence. It is in these circumstances that one has to consider the application of the principle enunciated by the Privy Council in its decision in Atmaram v. Collector of Nagpur. Strictly speaking, under the principle so enunciated the claimants owning S. No. 5 would not be entitled to claim benefit or advantage of rise in prices brought about by the acquisition set in motion qua their own lands and similarly the claimants owning S. No. 6 and S. Nos. 322, 323, 324 and 325 would not be entitled to claim any benefit or advantage of rise in the prices brought about by the acquisition set in motion qua their own lands. But surely, the benefit or advantage reflected in the rise of prices as a result of acquisition set in motion qua S. No. 6 and S. Nos. 322, 323, 324 and 325 would be available to the claimants of S. No. 5 and similarly the benefit or advantage reflected in the rise of prices arising from the acquisition in respect of S. No. 5 could be claimed by the claimants owning S. No. 6 and S. Nos. 322, 323, 324 and 325. Under clause fifthly of section 24 as interpreted by the Privy Council in Atmaram v. Collector of Nagpur the only benefit or advantage which has to be excluded or denied to a claimant is the one arising from carrying out of the scheme for the purposes for which that claimant's property is being acquired. If that be so, we are clearly of the view that it would be improper to deny to the claimants, who are the owners of S. No. 5, the advantage or benefit reflected in the price rise as a result of acquisition that was set in motion qua S. No. 6 and S. Nos. 322, 323, 324 and 325 and similarly to the claimants, who are the owners of S. No. 6 and S. Nos. 322, 323, 324 and 325 the benefit or advantage reflected in the price rise as a result of acquisition that was set in motion qua S. No. 5. At the same time it must be observed that when these two acquisitions have been simultaneously set in motion qua two adjacent properties, it would be difficult to apportion such benefit or advantage between them and ascertain what part of such benefit or advantage would be attributable to any particular acquisition and, therefore, while granting to one or the other set of claimants, such benefit or advantage arising out of the acquisition other than their own acquisition some allowance will have to be made for the benefit or advantage that has arisen on account of their own acquisition. In the peculiar circumstances which are obtaining in the instant case before us, we are inclined to take the view that subject to making such allowance as has been just indicated above, it would not be proper to deny to the claimants who are the owners of S. No. 5 the benefit or advantage as reflected in the rise in prices arising due to acquisition set in motion qua S. No. 6 and S. Nos. 322 to 325 and to claimants who are the owners of S. No. 6 and S. Nos. 322, 323, 324 and 325 the benefit or advantage reflected in the rise in prices on account of acquisition set in motion qua S. No. 5 and it is after making such allowances that we will determine the compensation that would represent the fair market value of the property acquired to each set of the claimants.
8. The next contention urged by Mr. Pratap pertains to the relevancy or otherwise of the post-notification sales. In this connection it may be mentioned that the claimants in both the References, inter alia, relied upon the sale deeds dated June 23, 1959, June 2, 1960 and August 24, I960. In addition, in L. A. Ref. No. 45 of 1962 the claimants relied upon one more sale instance dated May 23, 1960 (evidenced by Exh. 24). All these sale instances pertained to lands which were sold on the basis that they were non-agricultural lands but were post-notification transactions. As stated earlier, the learned Judge in L. A. Reference No. 16 of 1963 discarded all these sale instances which were relied upon by the claimants and preferred to rely upon the sale instances produced on behalf of the State Government which related to agricultural parcels of lands but in L. A. Ref. No. 45 of 1962 the learned Judge discarded the sale instances produced on behalf of the State and relied upon these post-notification sales, particularly the three sale deeds (Exhs. 24, 28 and 36), dated May 23, 1960, June 23, 1959 and June 2, 1960 respectively for the purpose of fixing the market value of the acquired lands and what has been urged by Mr. Pratap before us is that all these sale deeds pertaining to post-notification period should have been regarded as irrelevant and ought to have been discarded by the learned Judge, especially when these were of much later dates-two to three years later than the date of the publication of the relevant Notification. He conceded that it was not a hard and fast rule that no post-notification sale deeds could at all be considered and if the post notification sales were within some reasonable period, say, two to four months from the publication date of the relevant notification, such sales could be considered by the Court. But in this case all these post-notification sales were remote in point of time to the extent of two to three years after the date of the relevant Notification and as such these should have been considered as irrelevant and ought not to have been relied upon. In support of his contention he relied upon a decision of the Madras High Court in Velayudam v. Special Tahsildar; the relevant head-note on which he relied runs as follows:
"The date of the notification under section 4 (1) of the Act is important, as it fixes the material date for determining the market value of the land to be acquired. Therefore, a date of the sale to be relied upon ought to be of about this time, since if the sales took place several years ago, then they might not be the best valuable evidence. Sales after notification must be discarded when it is proved that the values have been affected one way or the other by circumstances which have arisen after that date, whether by reason of the notification of the acquisition or otherwise However, in determining the market- value of land to be acquired by Government, post notification transactions should not necessarily be ignored altogether. Ail transactions must be relevant which can fairly be said to afford a fair criterion of the value of the property as on the date of the notification. If any considerable interval has elapsed, the Court will naturally attach little or no value to subsequent sales, just as transactions long prior to the notification will usually be discarded."
Relying upon the above decision he urged that since in the instant case before us the sales on which reliance was placed by the claimants were of dates some two to three years later than the date of the Notification issued under section 4(1) of the Act, these should have been discarded by the learned Judge. It is not possible to accept this contention of Mr. Pratap, for, in our view, even the decision on which he has relied does not lay down the proposition that all post-notification sales must be discarded outright. Though it has been observed that sales after the notification would be of no avail, that statement is qualified by further statement that in the case of such post-notification sales if it is proved that the values have been affected one way or the other by circumstances which have arisen after that date, whether by reason of the notification of the acquisition or otherwise, then such post-notification sales would be of no value. In fact, in this decision the view of this Court as expressed in Assistant Development Officer, Trombay v. Tayaballi MANU/MH/0043/1933 : (1933) 35 Bom. L R 763 has been approved and, in our view, the Bombay decision in the case of Assistant Development Officer, Trombay v. Tayaballi has correctly laid down the legal position in the matter. It would be enough if we refer to the head-note in that case, which runs as follows:
"In estimating the market value of property compulsorily acquired under the provisions of the Land Acquisition Act, 1894, it cannot be laid down as a general rule that post- notification transactions should necessarily be ignored altogether. All transactions are relevant which can fairly be said to afford a fair criterion of the value of the property as at the date of the notification. If any considerable interval has elapsed the Court will naturally attach little or no value to subsequent sales, just as transactions long prior to the notification will usually be discarded; but transactions only a month or two after the notification may sometimes perhaps have some value as evidence. It must largely depend on the purpose of the acquisition. If, for instance, lands have been acquired for the development of a locality and the improvement of its communications and amenities, it is a reasonable inference that the value of property will increase, and the Court must consider that factor even though it is not directly proved that the transactions in question have been affected by the notification Direct proof would hardly ever be available."
From the statement of law quoted above, it will appear clear that there is no general rule that post-notification transactions are necessarily to be ignored altogether. On the other hand, all transactions would be relevant which could afford fair criteria for the value of the property as at the date of the notification under section 4. The distance of time by which a particular transaction is divorced from the date of relevant notification will have a bearing on the probative value and impact of that transaction while determining the fair market value of the property acquired. As has been stated in the aforesaid head-note, it must generally depend upon the purpose of acquisition and the question whether any particular transaction, even if it be a post-notification transaction, is relevant and can afford a guide for determining the fair market value of the property acquired as at the date of the Notification will depend upon the facts and circumstances of each case. Just as transactions long prior to the notification may be of no value, similarly the transactions long after the notification would be of no value. But it cannot be laid down as any positive rule that such transactions have necessarily to be ruled out altogether. In fact, sections 23 and 24 do not prohibit post-notification sales from being taken into consideration while determining the market value of the acquired land. In view of this position in law which has been clarified in Assistant Development Officer, Trombay v. Tayaballi, it will not be possible to accept Mr. Pratap's contention that the sale instances on which reliance has been placed by the claimants should be discarded outright or ought to have been regarded as irrelevant simply because they happened to be post-notification sales divorced by two to three years from the date of the relevant Notification. We may point out that the view expressed in Assistant Development Officer, Trombay v. Tayaballi has been approved by the Andhra Pradesh High Court in the case of Land Acquisition Officer v. Penchalayya 1962 A P 725 ., where the head-note runs as follows:
"The terms of section 23 of the Land Acquisition Act do not prohibit post-notification sales from being taken into consideration. What has to be determined under section 23 (1) is the market value as on the date of the notification. Even section 24 of the Act does not in terms state that post-notification transactions ought to be eschewed or ignored altogether. The post notification transactions are relevant and admissible though the weight to be attached to those transactions might vary according to the facts of each particular case."
Having regard to the provisions contained in sections 23 and 24 of the Act and in view of the position which has been clarified in Assistant Development Officer, Trombay v. Tayaballi and Land Acquisition Officer v. Penchalayya it is difficult to accept Mr. Pratap's contention that the sale instances on which reliance has been placed by the claimants should be discarded and should be held as irrelevant simply because all these sale instances are post-notification sales and are divorced from the relevant date of the Notification by two to three years. [Rest of the judgment is not relevant for this Report.
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